GLR-CMC A Joint Venture, B-281004, December 18, 1998

B-281004 Dec 18, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights While General Accounting Office will not review substantive Small Business Administration (SBA) determination regarding a section 8(a) program participant's eligibility for a particular award. GAO will consider protest against eligibility determination where it is alleged that SBA violated or misapplied regulations in making the determination. 2. The IFB was issued as a competitive small disadvantaged business set-aside under section 8(a) of the Small Business Act. Sec. 637(a) (1994). /1/ The Army rejected GLR-CMC's bid after the Small Business Administration (SBA) notified it that the joint venture was not eligible for award under the solicitation. Competition under the IFB was restricted to firms which had been certified by SBA for participation in the 8(a) program and which had Standard Industrial Classification (SIC) Code 1542 (General Contractors. View Decision Matter of: GLR-CMC A Joint Venture File: B-281004 Date: December 18, 1998 DIGEST Attorneys DECISION GLR-CMC A Joint Venture protests the rejection of its bid and the selection for award of Intersteel, Inc. under invitation for bids (IFB) No. DACA01-98-B-0031, issued by the U.S. Army Corps of Engineers for construction of an Army Reserve Training Center in Knoxville, Tennessee. The IFB was issued as a competitive small disadvantaged business set-aside under section 8(a) of the Small Business Act, 15 U.S.C. Sec. 637(a) (1994). /1/ The Army rejected GLR-CMC's bid after the Small Business Administration (SBA) notified it that the joint venture was not eligible for award under the solicitation. The protester takes issue with SBA's determination. We deny the protest. Competition under the IFB was restricted to firms which had been certified by SBA for participation in the 8(a) program and which had Standard Industrial Classification (SIC) Code 1542 (General Contractors--Nonresidential Buildings, Other Than Industrial Buildings and Warehouses) included in their approved business plans. /2/ IFB, at 00100-13. Three bids were opened on the June 11, 1998 opening date. GLR-CMC's bid of $7,627,000 was low, and Intersteel's bid of $8,622,000 was second low. In accordance with SBA regulations, 13 C.F.R. Sec. 124.311(e)(4)(i), and Federal Acquisition Regulation (FAR) Sec. 19.805-2(c)(1), the contracting officer forwarded to SBA a list of the bidders for a determination regarding their eligibility for award. /3/ SBA responded that GLR-CMC was not eligible for award because the joint venturer with 8(a) certification, GLR, did not have SIC code 1542 in its approved business plan. /4/ SBA then considered the eligibility of Intersteel for award and determined that it was eligible. By letters dated August 31, the Corps of Engineers notified both the protester and Intersteel that the latter company had been selected for award. GLR filed an agency-level protest on September 4 and protested to our Office on September 9. /5/ The protester takes issue with SBA's determination of ineligibility, arguing that (1) SBA regulations no longer restrict competition under an 8(a) set-aside to those firms that have the SIC code identified in the solicitation in their approved business plans; (2) one of the joint venturers, CMC, had the correct SIC code; thus the joint venture had the correct code; (3) GLR was eligible for assignment of SIC code 1542 prior to issuance of the solicitation, but was assigned code 1541 instead by mistake, so that code 1542 should be assigned to it retroactively; (4) GLR was assigned code 1542 on June 29 and thus was an eligible Program Participant under that code on the date of contract award, which is all that is required by 13 C.F.R. Sec. 124.307(f); and (5) the addition of code 1542 to its approved business plan after submission of its bid constituted a late modification to an otherwise successful bid that the government was required to consider pursuant to FAR Sec. 52.214-7(f). As a preliminary matter, SBA argues that it has exclusive authority to determine the eligibility of an 8(a) firm for award and that our Office therefore lacks the authority to review GLR-CMC's protest. In support of its argument, SBA cites 13 C.F.R. Sec. 124.311(f), which provides: The eligibility of a Program Participant for a competitive 8(a) award may not be challenged by another Program Participant or any other party to SBA or to any other administrative forum as part of a bid or other contract protest. Anyone with information concerning the eligibility of a Program Participant to continue participation in the 8(a) program may submit such information to SBA in accordance with Sec. 124.111(c). See also FAR Sec. 19.805-2(e). We have interpreted this section as barring our review of substantive determinations by the SBA regarding a program participant's eligibility for a particular award. Premier Cleaning Sys., Inc., B-249179.3, July 27, 1992, 92-2 CPD Para.